Registration No. 333-_____
As filed with the Securities and Exchange
Commission on August 16, 1996
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FORM S-8
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HARNISCHFEGER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 39-1566457
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13400 Bishops Lane, Brookfield, Wisconsin 53005
(Address of principal executive offices) (Zip Code)
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HARNISCHFEGER INDUSTRIES, INC.
STOCK INCENTIVE PLAN
(Full title of the plan)
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ERIC B. FONSTAD, ESQ.
Senior Corporate Counsel and Assistant Secretary
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
(Name and address of agent for service)
(414) 671-4400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title of Securities Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Registration
Registered (1) Registered (2) Per Share (3) Price (3) Fee
Common Stock,
$1 par value 2,000,000 shares $33.75 $67,500,000 $33,750.00
=============================================================================
(1) Including one preferred share purchase right appertaining to each share
of Common Stock pursuant to a Rights Agreement dated as of February 8,
1989 between the Registrant and The First National Bank of Boston, as
Rights Agent.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon the average of the high and low sales
prices of the Registrant's Common Stock on August 12, 1996, as reported
in The Wall Street Journal.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to Harnischfeger Industries, Inc. Stock Incentive Plan ("Plan")
participants as specified by Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Harnischfeger Industries, Inc. (the
"Registrant") (Commission File No. 1-9299) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by
reference by the Registrant and the Plan:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
October 31, 1995;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
January 31, 1996 and April 30, 1996;
(c) The Registrant's Current Report on Form 8-K dated March 25, 1992,
including specifically the description of the Registrant's Common Stock
in Item 5 thereof (including any amendment or report filed for the
purpose of updating such description), which updates the description
contained in the Registrant's Registration Statement on Form 8-B filed
on October 20, 1986;
(d) The Registrant's Current Reports on Form 8-K dated December 4, 1995 and
December 8, 1995.
All documents subsequently filed by the Registrant and the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See Item 3(c) above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations.
Section 14 of Article III of the Registrant's Bylaws provides for
indemnification of any director, officer, employee or agent of the Registrant,
or any person serving in the same capacity in any other enterprise at the
request of the Registrant, under certain circumstances. Article 6 of the
Registrant's Certificate of Incorporation eliminates the liability of
directors of the Registrant under certain circumstances for breaches of
fiduciary duty to the Registrant and its stockholders, as permitted by Section
102(b)(7) of the Delaware General Corporation Law.
The Registrant is insured against certain liabilities which it may incur
by reason of Section 14, Article III, of its Bylaws. In addition, officers
and directors are insured, at the expense of the Registrant, against certain
liabilities which might arise out of their employment and which might not be
subject to indemnification under the Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Reference is made to the indemnification provisions referred to in
Item 6 of the Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Brookfield, State of Wisconsin, on
August 16, 1996.
HARNISCHFEGER INDUSTRIES, INC.
(Registrant)
By: /s/ Jeffery T. Grade
-----------------------------
Jeffery T. Grade
Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jeffery T. Grade and Francis M. Corby, Jr., and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and any other regulatory
authority, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and power of attorney have been signed on April 9, 1996
by the following persons in the capacities indicated:
Signature Capacity
/s/ Jeffery T. Grade Chairman and Chief Executive Officer
- --------------------------
Jeffery T. Grade
/s/ Francis M. Corby, Jr. Executive Vice President for Finance and
- -------------------------- Administration (Chief Financial Officer)
Francis M. Corby, Jr.
Vice President and Controller (Chief
/s/ James C. Benjamin Accounting Officer)
- --------------------------
James C. Benjamin
/s/ Donna M. Alvarado
- -------------------------- Director
Donna M. Alvarado
/s/ Larry D. Brady
- -------------------------- Director
Larry D. Brady
/s/ John D. Correnti
- -------------------------- Director
John D. Correnti
/s/ Harry L. Davis
- -------------------------- Director
Harry L. Davis
/s/ Robert M. Gerrity
- -------------------------- Director
Robert M. Gerrity
/s/ Robert B. Hoffman
- -------------------------- Director
Robert B. Hoffman
/s/ Ralph C. Joynes
- -------------------------- Director
Ralph C. Joynes
/s/ Herbert V. Kohler, Jr.
- -------------------------- Director
Herbert V. Kohler, Jr.
/s/ Jean-Pierre Labruyere
- -------------------------- Director
Jean-Pierre Labruyere
/s/ Robert F. Schnoes
- -------------------------- Director
Robert F. Schnoes
/s/ Donald Taylor
- -------------------------- Director
Donald Taylor
HARNISCHFEGER INDUSTRIES, INC.
(the "Registrant")
(Commission File No. 1-9299)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit Incorporated Herein by Filed
Number Description Reference To Herewith
4.1(a) Certificate of Incorporation Exhibit 3(a) to the Regis-
of Harnischfeger Industries, trant's Registration State-
Inc., dated September 16, ment on Form S-4, File No. 33-
1986 8821
4.1(b) Certificate of Designations Exhibit 28.1(b) to the Regis-
of Preferred Stock, Series D trant's Current Report on Form
8-K dated March 25, 1992
4.1(c) Certificate of Amendment of Exhibit 4.1(c) to the Regis-
Certificate of Incorporation trant's Registration Statement
of Harnischfeger Industries, on Form S-8 filed on January
Inc., dated November 29, 1994 9, 1995 (Registration No. 33-
57209)
4.2 Rights Agreement dated as of Exhibit 1 to the Registrant's
February 8, 1989 between Registration Statement on Form
Harnischfeger Industries, Inc. 8-A filed on February 9, 1989
and The First National Bank
of Boston, as Rights Agent,
which includes: as Exhibit A,
the Certificate of Designations
of Preferred Stock, Series D,
setting forth the terms of the
Preferred Stock, Series D; as
Exhibit B, the Form of Rights
Certificate; and as Exhibit C,
the Summary of Rights to Pur-
chase Preferred Stock, Series D
4.3 Bylaws of Harnischfeger Indus- Exhibit 3(b) to the
tries, Inc., as amended on Registrant's Annual Report
December 11, 1995 on Form 10-K for the fiscal
year ended October 31, 1995
5.1 Opinion of Counsel X
23.1 Consent of Price Waterhouse LLP X
23.2 Consent of Price Waterhouse X
23.3 Consent of Arthur Andersen LLP X
23.4 Consent of Counsel Contained in
Opinion
filed as
Exhibit 5.1
24 Powers of Attorney Signature
Page to this
Registration
Statement
EXHIBIT 5.1
(Form S-8)
August 16, 1996
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, WI 53005
Gentlemen:
I am providing this opinion in connection with the Registration
Statement of Harnischfeger Industries, Inc. (the "Company") on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), with respect to the proposed sale of up to 2,000,000 shares of
Common Stock, $1 par value per share, of the Company (the "Shares") pursuant
to the Harnischfeger Industries, Inc. Stock Incentive Plan (the "Plan")
maintained by the Company. I have examined (i) the Registration Statement;
(ii) the Company's Restated Certificate of Incorporation and Bylaws, each as
amended to date; (iii) the Plan; (iv) corporate proceedings relating to the
adoption of the Plan and the issuance of the Shares; and (v) such other
documents and records as I have deemed necessary in order to render this
opinion. In rendering this opinion, I have relied as to certain factual
matters on certificates of officers of the Company and of state officials.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
2. The Shares to be sold from time to time pursuant to the Plan which
are original issuance shares, when issued and paid for as
contemplated by the Registration Statement and the Plan, will be
validly issued, fully paid and non-assessable by the Company
subject to the personal liability which may be imposed on
shareholders by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted, for debts owing to
employees for services performed, but not exceeding six months
service in any one case. Although Section 180.0622(2)(b) provides
that such personal liability of shareholders shall be "to an
amount equal to the par value of shares owned by them
respectively, and to the consideration for which their shares
without par value was issued," the Wisconsin Supreme Court, by a
split decision without a written opinion, has affirmed a judgment
holding shareholders of a corporation liable under the
substantially identical predecessor statute in effect prior to
January 1, 1991 (Section 180.40(6)) for unpaid employee wages to
an amount equal to the consideration for which their par value
shares were issued rather than the shares' lower stated par value.
Local 257 of Hotel and Restaurant Employees and Bartenders
International Union v. Wilson Street East Dinner Playhouse, Inc.,
126 Wis. 2d 284, 375 N.W.2d 664 (1985) (affirming the 1983
decision of the Circuit Court for Dane County, Wisconsin, in Case
No. 82-CV-0023). The Wisconsin Supreme Court has held that
Section 180.40(6) applies to shareholders of foreign corporations
licensed to do business in the State of Wisconsin, which the
Company is, as well as to shareholders of domestic corporations.
Joncas v. Krueger, 61 Wis. 2d 529, 213 N.W. 2d 1 (1973).
Harnischfeger Industries, Inc.
August 16, 1996
Page 2
I consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving my consent, I do not admit that I am an
"expert" within the meaning of Section 11 of the Act, or that I come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Eric B. Fonstad
Eric B. Fonstad, Esq.
Senior Corporate Counsel
and Assistant Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 28, 1995, which appears in
the 1995 Annual Report to Shareholders of Harnischfeger Industries, Inc.
("Harnischfeger") included in Harnischfeger's Current Report on Form 8-K dated
December 8, 1995, which is incorporated by reference in Harnischfeger's Annual
Report on Form 10-K for the year ended October 31, 1995.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE, LLP
Milwaukee, Wisconsin
August 14, 1996
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 6, 1995, which appears in
Harnischfeger Industries, Inc. Current Report on Form 8-K dated December 4,
1995.
/s/ Price Waterhouse
PRICE WATERHOUSE
Manchester, England
August 14, 1996
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated March
25, 1994, included in Harnischfeger Industries, Inc.'s Form 8-K dated December
8, 1995, which is incorporated by reference in Harnischfeger Industries,
Inc.'s Annual Report on Form 10-K for the year ended October 31, 1995, and to
all references to our firm included in this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Pittsburgh, Pennsylvania,
August 15, 1996
August 16, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form S-8 Registration Statement of Harnischfeger Industries, Inc.
(Commission File 1-9299) (the "Registrant")
Ladies and Gentlemen:
Enclosed for filing via EDGAR is a Form S-8 Registration Statement
relating to 2,000,000 shares of the Registrant's Common Stock to be offered
for sale pursuant to the Harnischfeger Industries, Inc. Stock Incentive Plan
(the "Plan"), including the exhibits identified in the Registration Statement
as being filed therewith.
The filing fee for this Registration Statement, in the amount of
$33,750.00 was transmitted via wire transfer to Mellon Bank on August 2, 1996.
The Registration Statement will be filed with the New York Stock
Exchange, on which the Registrant's Common Stock is listed, under separate
cover.
Very truly yours,
HARNISCHFEGER INDUSTRIES, INC.
/s/ Eric B. Fonstad
Eric B. Fonstad
Senior Corporate Counsel
and Assistant Secretary
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